Citation Nr: 0516667
Decision Date: 06/20/05 Archive Date: 06/27/05
DOCKET NO. 00-21 064 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to an effective date earlier than February 5,
1999 for an evaluation of 50 percent for bilateral hearing
loss.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant and Appellant's Spouse
ATTORNEY FOR THE BOARD
L.J. Bakke, Counsel
INTRODUCTION
The veteran served on active duty from November 1943 to
January 1946, July 1950 to July 1951, November 1952 to March
1954, and from June 1954 to September 1954. Service
department records further reflect that he served in the U.S.
Marine Corps Reserves from March 1948 to July 1950, and from
July 1951 to November 1952.
This appeal arises before the Board of Veterans' Appeals
(Board) from a rating decision rendered in May 2000 by the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida.
The veteran testified in May 2005 before the undersigned
Veterans Law Judge who was designated by the Chairman to
conduct the hearings pursuant to 38 U.S.C.A. § 7102(b) (West
2002) and who will participate in this decision. A copy of
the hearing transcript issued following the hearing is of
record.
The Board notes that the veteran's original claim was phrased
in such a way as may be interpreted as a request for increase
in all his hearing disabilities. In his June 1999 claim he
wrote he was filing for an increase in rating for the
following service connected condition: bilateral hearing
loss, presently rated at 40 percent. However, the veteran's
hearing loss was then rated at 20 percent. His service
connected tinnitus was evaluated as 10 percent disabling, and
the service connected bilateral otitis media, also as 10
percent disabling for a combined disability evaluation of 40
percent.
In addition, during the veteran's May 2005 hearing, the
veteran's representative discussed the issue of neurological
damage in the veteran's ears. It is uncertain what this
damage may be, but to the extent that it raises a claim for a
separate, compensable evaluation for a manifestation of
disability not already included in the disabilities for which
the veteran is now service connected, the Board recognizes an
implied claim for service connection.
Finally, the veteran testified that he wished to forward a
claim for an increased evaluation for his service connected
hearing loss.
These issues are referred to the RO for appropriate action.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
if further action is required on his part.
REMAND
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A.
§§ 5102, 5103, 5103A, 5107 (West 2002). This law redefined
the obligations of VA with respect to the duty to assist, and
imposed on VA certain notification requirements. The final
regulations implementing the VCAA were published on August
29, 2001, and they apply to most claims for benefits received
by VA on or after November 9, 2000, as well as any claim not
decided as of that date. 38 C.F.R. §§ 3.102, 3.156(a), 3.159
and 3.326(a) (2004).
The Board has reviewed the record and finds that additional
development is necessary before appellate action may be
completed in this case. In this regard, the Board notes that
the veteran testified before the undersigned Veterans Law
Judge in May 2005 that he received treatment for his hearing
disabilities in or about January 1998 when he was in Oregon
visiting his son and daughter-in-law. He experienced
difficulty with his hearing and visited the VA Medical Center
(VAMC). The physician evaluated him and determined that he
had sustained neurological damage. The physician then
advised it would be better if the veteran pursued a treatment
plan with his regular health care providers at home. So the
veteran deferred treatment until he returned home.
The regulations provide that, except as otherwise provided,
the effective date of an evaluation and award of pension,
compensation, or dependency and indemnity compensation based
on an original claim, a claim reopened after final
disallowance, or a claim for increase will be the date of
receipt of the claim or the date entitlement arose, whichever
is the later. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R.
§ 3.400 (2004). The effective date of an increase in
disability compensation shall be the earliest date as of
which it was factually ascertainable that an increase in
disability had occurred if a claim was received within one
year from such date; otherwise, the effective date shall be
the date of receipt of claim. 38 C.F.R. § 3.400(o)(2)
(2004).
It is not possible to determine whether an effective date
earlier than February 5, 1999 may be established absent the
VA treatment records from the VAMC in Oregon. These records
must therefore be obtained.
The Board notes that the U.S. Court of Appeals for the
Federal Circuit (Federal Circuit) in Disabled Veterans of
America v. Secretary of Veterans Affairs (DAV v. Sec'y of
VA), 327 F.3d 1339 (Fed. Cir. 2003) invalidated the Board's
ability to cure VCAA deficiencies. Therefore a remand is
required in this appeal so that additional development may be
undertaken in order to fulfill the Department's duty to
assist the appellant with his claim. 38 U.S.C.A. § 5103A
(West 2002); 38 C.F.R. § 3.159 (2004).
Accordingly, and to ensure full compliance with due process
requirements, further appellate consideration will be
deferred and the case is REMANDED to the RO for the following
development:
1. The RO should request that the
veteran identify the VA Medical Center
(MC) at which he testified that he
received treatment in Oregon while
visiting his son and daughter-in-law in
or about December 1997, where he was told
by a VA physician that he had nerve
damage in his ear. The veteran should
also be asked to identify any other VA or
non-VA health care providers and
physicians who may have treated him for
his hearing disabilities from June 1998
through June 1999.
2. The RO should then obtain the
veteran's medical records from all
identified health care providers-that
are not already of record. In
particular, the RO should obtain any and
all medical records for treatment
accorded him for his hearing disabilities
from the VAMC in Oregon State that the
veteran visited in or about December
1997.
3. Furthermore, the appellant should be
specifically informed as to what portion
of evidence he is required/expected to
submit, and which portion of the evidence
the VA would attempt to obtain in order
to assist the appellant in substantiating
his claims, per 38 U.S.C.A. §§ 5103(a),
5103A; Quartuccio v. Principi, 16 Vet.
App. 183 (2002) and Charles v. Principi,
16 Vet. App. 370 (2002)).
4. After receipt of any and all newly
acquired evidence, the RO should again
review the veteran's claim for an
effective date earlier than February 5,
1999 for the 50 percent evaluation
assigned for his bilateral hearing loss.
If the decision remains in any way
adverse to the veteran, he and his
representative should be furnished with a
supplemental statement of the case, and
with a reasonable period of time within
which to respond.
The case should thereafter be returned to the Board for
further review, as appropriate. The veteran need take no
action until he is so informed. The appellant has the right
to submit additional evidence and argument on the matter or
matters the Board has remanded to the regional office.
Kutscherousky v. West, 12 Vet. App. 369 (1999). The Board
intimates no opinion as to the ultimate outcome of this case.
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
_________________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2004).